going to be a three-way contest, with the odds all ultimately in favor of Asia. And if we are going continually to insult people of Asiatic extraction and other minorities, then we are cutting the ground away from ourselves, because wars are not won by armaments; they are won by the convictions and the love of liberty and justice in human hearts. Speaking now on section 3 of the act, I subscribe to the floor of 50 which the act provides as a minimum to bring the employer or the labor organization within the act. I think the floor of 50 is sufficiently large so as to do away with a lot of mind housekeeping. It does away also with the argument against the regulation of intimate personal relationships, where a man has a small factory or a small business or profession.

On the other hand, when you get a business with a minimum of 50 employees, you begin to get impersonalization and anonymity where the application of broad standards works a hardship on no one, and unless you keep the floor at 50, you will then permit so many persons and so many industries to escape that you will not be able effectively to establish a national pattern.

In the matter of the unlawful employment practices-I skip the question of the regulation of employers, because that was established from way back at the very first Executive order establishing FEPCI want to go for just a moment to the question of fair-employment practice as to the regulation of unions.

Now, as to unions which are democratic, a declaration by law of their own union practices certainly cannot hurt. On the other hand, the organization of industry is now such that unless a man is inside the ranks of organized labor, he is really working at sufferance so far as his daily wages are concerned.

We have gone through this, and it has been establishe by the United States of America in Railway Mail Association v. Corsi, the great New York case, in 326 U. S. 88, that a State can impose the obligation that a labor union admit all qualified members of the craft. And the same thing has happened in California, where James v. Marinship Corporation, 155 Pac. 2d 329, and Williams v. The International Boilermakers, 155 Pac. 2d 903, have established the principle that you can have a closed shop and an open union, or you can have an open union and a closed shop, but you cannot have a closed shop and a closed union. And there is a point particularly where a fair-employment practice law has to step in.

I would also like to point out the fact that State courts, by their own decision, Betts v. Easley, in 161 Kans. 459, have ruled that discrimination in the classification of membership is also against the law and public policy. And the Kansas decision was reached in reference to a union, the Brotherhood of Railroad Carmen, which was working in interstate commerce.

So we have here State standards of morality, so to speak, which completely established the fact that you are not pioneering in this matter of section 5 in establishing unfair labor practices on the part of unions who discriminate against minority workers on account of race, creed, color, or national origin.

Now, I would like to point out one other thing-the absolute necessity of being inside the union. Even after getting a collective-bargaining contract, the policing of the contract is the important thing which

translates itself into jobs and wages. In other words, the collectivebargaining contract is simply a regulation; it is the enforcement of the contract by the working boss, or by the shop foreman, or by the local chairman, which actually gives the worker his protection, or denies him protection.

Now, in the railway industry, the Negro workers have been up against the proposition that they were not members of the unions which drew the contracts; they did not have any voice in selecting union officials who made the contracts or who policed the contracts. So any time you have a worker who has no voice in the selection of the official who makes his contract or enforces his contract, no right to censor that official, no right to remove that official in case of misfeasance, that worker, I say, is working and holding his job by sufferance, and has absolutely no protection and cannot be protected unless he is inside the labor union.

May I call your attention-just citing some cases which may be of interest in case this matter is ever challenged-to Steele v. Louisville & Nashville Railroad Company, 323 U. S. 192; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, in 323 U. S. 210, the same case in 163 Fed. 2d 289, where damages of $1,500 were imposed upon the Brotherhood of Locomotive Firemen and Enginemen for discrimination against a Negro fireman in representation, and the case of Palmer v. Southern Railway, which is now pending in the United States District Court here in the District of Columbia, which is raising the issue as to whether a union can represent a worker, a nonmember, unless it gives him the same opportunity to select the bargaining officials and the local grievance officials as a regular member.

As to section 6, I will call attention to the point I have already made, and I should like to offer an amendment, by way of a sentence on page 7, line 4, after the word "Senate":

No more than three commissioners serving at any given time shall be members of the same political party.

I have already indicated the reasons for this. I think this becomes particularly important when you turn to section 7 (a), which is at the bottom of page 10, line 25, where you give the commission exclusive power in the matter of hearing complaints of unfair labor practices under this legislation. That is to say, I think that if the Commission is going to be given an exclusive power, every safeguard should be given to establish that the Commission shall be nonpartisan.

I should like to give you the sad example of a partisan board, which is the National Railroad Adjustment Board under the Railway Labor Act. That National Railroad Adjustment Board, under section 3 of the Railway Labor Act, is composed of 36 members-18 are selected by the carriers and 18 are selected by the labor unions, national in scope. You begin to see at once what happens when you realize that the Negro workers are excluded from the unions, national in scope, which select the labor representatives who are on the Board.

Now, the National Railroad Adjustment Board is divided into four divisions, and division No. 1 handles the train, engine and yard service employees-the operating employees-and the 5 labor members-there being 10 members in all on this division No. 1-5 carrier members and 5 labor members-the 5 labor members are chosen from

the Brotherhood of Locomotive Engineers, the Brotherhood of Locomotive Firemen and Enginemen, the Brotherhood of Railroad Trainmen, the Order of Railway Conductors, and the Switchmen's Union of North America. Every one of those five unions has a Negro color bar.

Now, to ask a Negro fireman or a Negro brakeman to take his case or his grievance before the National Railroad Adjustment Board, first division, with the five labor members chosen by unions which bar Negroes from membership, is not adjudication, but confiscation. For that reason, I say that it is most important to have this commission nonpartisan because of the vast power that is exercised by them, and I think that they should have all the dignity of United States district judges.

And if there is any complaint which I would have about the matter of the Commission, it would be that the terms of each member should be lengthened, so that you would run the terms of the maximum, under rotation, up to 10 years, instead of 5 years, so that the man, first, could make it a career, and, second, he could be above the necessity of watching the political weather vane on the matter of his decisions, fearing that he might not be reappointed.

Outside of that, I think that the act is very commendable. I think it is necessary. It will work, and I am quite sure that you will be strengthening national policy and doing a great service to the individual human beings who make up this Nation to pass this legislation..

I want to say one final thing: The Government which exacts an obligation of individual loyalty, support, the draft, service in the armed forces, payment of your income tax and other taxes, to my mind owes the same duty of protection on an individual basis. As a matter of fact, the Supreme Court has already said that. In a number of cases, such as Mitchell v. Interstate Commerce Commission, where Congressman Mitchell wanted to go to Hot Springs and the railroad company said, "Well, Negroes do not have enough patronage to justify a separate pullman," and they could go down and get lower 13, which means a berth in the drawing room, if they would go down and ask far enough in advance. Chief Justice Hughes said a Negro has the right to buy his ticket on the same terms as anybody else; the Gaines case, and the Sipuel case, which say it does not make any difference who wants the education or how many want it or how many do not want it; if one Negro makes application for public education which is offered to whites but not to Negroes, the State is under a constitutional obligation to furnish it. So a Government which exacts individual loyalty and obedience and does not render protection on an individual basis commensurate with that same obligation of obedience, to my mind, is not worthy of the name, and has no right to call upon the citizen for obedience until it is willing to give him commensurate protection.

Mr. POWELL. Thank you, Mr. Houston. I should like to ask you some questions.

First, if invitations to appear are ignored, would you favor this committee issuing subpenas to Mr. Whitney and the other responsible officials of the brotherhoods to come before us and answer questions as to why the railroad brotherhoods refuse to admit Negroes, and, in some cases, Jews?

Mr. HOUSTON. Not only Jews, but everybody else. I certainly recommend that, and let me also call attention to the fact that at the present time, in the case of Tillman v. St. Louis & San Francisco Railway Company, in the United States District Court of the eastern judicial division of Missouri, before Judge George H. Moore, we are suing the same four brotherhoods to establish the principle that it is against the law and public policy of the United States to bar employment of any citizen on a public utility. And I would like to say how vulnerable they are.

In 1928, on March 14, the four brotherhoods-the Brotherhood of Locomotive Engineers, the Brotherhood of Locomotive Firemen and Enginemen, the Brotherhood of Railroad Trainmen, and the Order of Railway Conductors, forced the St. Louis & San Francisco Railway Co., through the Board of Mediation to the everlasting shame of the participation of the Federal Government in such a thing, to make a contract to the effect that after that date only white men would be hired in train, engine, and yard service.

Now, this is interesting. Those unions undertook to see that Negroes then in service would be protected in their employment, but they said that Negroes were unsafe to work with. The blind spot is that if unsafeness and inefficiency was a racial characteristic, the Negroes then in service had no more right to their jobs in the protection of the public than the Negroes who were not in service. So the very undertaking of the unions to preserve the jobs of Negroes in service just put the lie to the very arguments that they were using as grounds for barring Negroes.

We sued for $4,000,000, and the case came to trial April 28, 1949. The unions walked in court, and on that day, facing a suit for $4,000,000, the abrogated this agreement. In other words, they laid down their own FEPC. But we did not let them stop there, because we want a judicial decision in case that contract is repeated. I think that one of the most interesting things would be for this committee to subpena the four railroad brotherhood heads to find out why a public utility which serves all the people should not recognize its commensurate obligation to have fair-employment practices as well.

Mr. POWELL. What four do you suggest that we first invite, and give them time to reply, and if they do not reply, to subpena them? Mr. HOUSTON. I suggest that you invite Mr. Alvaney Johnston, of the Brotherhood of Locomotive Engineers; Mr. D. B. Robertson, of the Brotherhood of Locomotive Firemen and Enginemen; Mr. Whitney, whose first name escapes me for the moment, of the Brotherhood of Railroad Trainmen; and the president-he was Frazer-but I do not know who he is now, of the Order of Railway Conductors.

This fifth organization is not as important, but I would suggest that, to make the picture complete, you also invite the head of the Switchmen's Union of North America, whose office is in Buffalo, N. Y. Mr. POWELL. Mr. Nixon, do you have any questions?

Mr. NIXON. Yes. Mr. Houston, did I understand you to say that if you had a closed shop, it would be necessary to have an open union in order to insure nondiscrimination?

Mr. HOUSTON. That is right. As a matter of fact, a closed shop and a closed union have been outlawed by judicial decision in California. Those two cases are James v. Marinship, 115 Pac. 2d, and Williams v. International Boilermakers, 165 Pac. 2d. That is right, sir.

Mr. NIXON. The present situation in the railroads is that Negroes are not eligible for membership in the unions?

Mr. HOUSTON. That is right.

Mr. NIXON. But is it a fact that, as a result of their ineligibility for membership in unions, they are denied employment in those particular capacities?

Mr. HOUSTON. Absolutely. As a matter of fact, that is the whole history since the Washington agreement of 1910 by the Order of Railway Conductors and the Brotherhood of Railroad Trainmen, in which the unions have constantly whittled down the employment of Negroes by the introduction of what are known as percentage agreements, providing that not more than a certain percentage of Negroes shall be employed. Now, the interesting thing, Mr. Congressman, is that those are always ceiling agreements. There is never any floor in them. In other words, they can go down to zero, but they can never rise above a particular percentage.

For example, on the Asheville division of the Southern Railway, it is 10 percent Negro firemen. Even then we do not have the employment of 10 percent, for the reason that usually hiring is unofficially done by the local chairmen bringing men up to the roundhouse foreman, or whoever the master mechanic is, or whoever is the hiring officer or manager. In other words, management details to the unions the task of recruiting, and they do not recruit when they cannot take members. There is no percentage in it.

Mr. NIXON. The reason I raise the point is that technically, as I understand it, there is not a closed shop under the Railway Labor Act. Mr. HOUSTON. You are correct.

Mr. NIXON. But your point, I think, is that as a practical matter, since management uses the union as its own source of employment, it means that even though there is not technically a closed shop, as a practical matter, none of the Negro applicants are hired; is that right?

Mr. HOUSTON. That is right. And may I simply say that, in this Palmer case, we have challenged the right of the union to represent us unless they give us the same right to select the members who do the collective bargaining, the same right of censure, and the same right of removal.

Now, the Supreme Court has said in the Steele case that, where necessary for the protection of minority interests, the union must come out of the union hall into open convention, just as you are here, to discuss collective bargaining proposals; so that if we are able to stop the union from representing us, unless they let us help elect the officials, when we make them come out of a lodge hall into open conference to discuss any business, we will be members of the union, because we will have destroyed all of the secrecy and the little perquisites of union membership which are now denied us.

Mr. NIXON. As I understand it, having sat through a number of hearings on the recent labor bill, I find there is a considerable problem in writing regulations opening up a union. We have, of course, in the bill before us, the provision that prohibits discrimination by a union for race, creed, or color, in denying or granting membership. But the interpretation of that clause in some cases, as you recognize, would have to be pretty broad in order to make it effective, because various rules could be adopted by a union which directly or in theory were not